December 12, 2019
Digest: A full-time judge may serve on the board of a not-for profit performing arts center, even if a government official appoints him/her.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(1); 100.4(C)(2)(a); 100.4(C)(3); 100.4(C)(3)(a)(I)-(ii); 100.4(C)(3)(b)(I), (iv); Opinions 12-108; 01-04; 98-35; 97-10.
A full-time judge asks if he/she may serve on the board of a not-for-profit performing arts center, where the appointment or designation would be made by the same elected non-judicial official who appointed the judge to judicial office. If permitted to accept the appointment, we understand the judge would not represent the appointing official on the board but would instead exercise his/her own independent judgment as a director.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge’s extra-judicial activities must not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A]). A full-time judge may serve as an officer or director of a not-for-profit cultural organization (see 22 NYCRR 100.4[C]), assuming it is unlikely to be “engaged in proceedings that ordinarily would come before the judge” (22 NYCRR 100.4[C][a][I]) or “engaged regularly in adversary proceedings in any court” (22 NYCRR 100.4[C][a][ii]). However, a judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR100.4[C][b][I]) nor permit the use of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][b][iv]).
Judges may serve on boards of a wide variety of not-for-profit arts-related organizations, including a charitable foundation that determines applications to fund projects in the arts (see Opinion 12-108), a county-wide arts council (see Opinion 98-35), and a regional performing arts theater (see Opinion 97-10).
The novel question here is whether appointment to this position by an elected non-judicial official creates any appearance of impropriety. We believe a 501(c)(3) not-for-profit performing arts center does not become “a governmental committee or commission or other governmental position” within the meaning of Section 100.4(C)(2)(a) merely because a governmental official is empowered to appoint to the board.1 Further, in our view, the fact that the judge was appointed to his/her judgeship by this same official is immaterial, as we understand the judge will not act as the official’s representative, but will instead exercise his/her own independent judgment as a director (cf. Opinion 01-04 [judicial candidate must not present awards “on behalf of and as the representative of public officials”]).
Thus, this full-time judge may join the board of a not-for profit performing arts center, even if the appointment is by a government official. Thus, in serving on the board, he/she must abide by all relevant limits on judicial speech and conduct, and the restrictions on fund-raising and giving legal advice.
1 A full-time judge must “not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][a]), although he/she may “represent a country, state or locality ... in connection with historical, educational or cultural activities” (id.).